Madras High Court
A.Badhrachalam vs The Principal Secretary/ on 17 April, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.4.2012 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.9354 of 2012 A.Badhrachalam . . Petitioner Vs. 1. The Principal Secretary/ Commissioner of Revenue Administration, Chepauk, Chennai - 600 005. 2. The District Collector, Krishnagiri District. . . Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records relating to the second respondent in his proceedings Roc.No.26566/2011/A1 dated 6.1.2012 in respect of non inclusion of the petitioner's name in the panel of Deputy Tahsildars for the year 2011 in Krishnagiri District and to quash the same and consequently direct the second respondent to include the petitioner's name above M.Munusamy (sl.No.12) and below V.Shanmugam (Sl.No.11) in the panel of Deputy Tahsildars for the year 2011 vide proceedings Roc.No.26566/2011/A1 dated 6.1.2012. For Petitioner : Mr.S.Vijayakumar For Respondents : Mr.R.M.Muthukumar, GA O R D E R
The prayer in the writ petition is to quash the proceedings of the second respondent dated 6.1.2012 in respect of non inclusion of the petitioner's name in the panel of Deputy Tahsildars for the year 2011 in Krishnagiri District and to direct the second respondent to include the petitioner's name above M.Munusamy (sl.No.12) and below V.Shanmugam (Sl.No.11) in the panel of Deputy Tahsildars for the year 2011 vide proceedings in Roc.No.26566/2011/A1 dated 6.1.2012.
2.The case of the petitioner is that he initially joined as Office Assistant in the revenue department on 23.12.1982 and later, became Record clerk on 20.2.1997. Subsequently, he was promoted as Junior Assistant on 9.10.1999 and became Assistant on 13.9.2002 and Revenue Inspector on 19.10.2002 and his service was regularised as Assistant on 4.4.2007. Now, he is working as Firka Revenue Inspector in Barur Firka, Pochampalli Taluk, Krishnagiri District. According to the petitioner, he has successfully completed all departmental tests and has become eligible for promotion to the post of Deputy Tahsildar for the year 2011. However, his name was not included in the panel for promotion drawn by the second respondent vide proceedings in Roc.No.26566/2011/A1 dated 6.1.2012, on account of shortage of service period in the post of Assistant in the clerical side. It is the further case of the petitioner that the post of Revenue Inspector in the executive side is equivalent to the post of Assistant in the clerical side and he was not given any posting in the clerical side to serve as Assistant. Hence, he is not responsible for not serving as Assistant in the clerical side and the proceedings of the second respondent to omit his name in the panel for promotion to the post of Deputy Tahsildar for the year 2011 stating that he is not possessing two years service in the post of Assistant on the clerical side, is arbitrary and without any reason. Challenging the same, the petitioner filed the present writ petition for the above stated relief.
3.Mr.S.Vijayakumar, learned counsel appearing for the petitioner submitted that the only reason stated in the impugned order for denying promotion to the petitioner is that the petitioner is not possessing two years service in the post of Assistant on the clerical side. The learned counsel submitted that the promotion of a person to a particular post is the domain of the authority concerned and the employee cannot be blamed for non-acquiring required service qualification and denial of promotion to the petitioner is contrary to well settled law. The learned counsel in support of his contention relied on the unreported decision of this Court made in W.P.No.47872, 47885 of 2006 and 7791 of 2007, common order dated 4.9.2007 which was followed in the decision reported in (2012) 1 MLJ 634 (S.Sasisivanandam v. District Collector, Thoothukudi) and also relied on a decision of mine reported in (2011) 8 MLJ 317 (S.Krishnakumar v. State of Tamil Nadu) wherein also the earlier order of this Court made in W.P.No.18501 of 2006 dated 9.10.2006 and W.P.No.13517 of 2009 dated 9.4.2010 were followed.
4.Mr.R.M.Muthukumar, learned Government Advocate appearing for the respondents on the other hand, sought to defend the order passed by the second respondent stating that due to shortage of service in the post of Assistant cadre, the petitioner name was not included in the promotion panel drawn by the second respondent.
5.Heard both sides.
6.The issue arises for consideration herein is as to whether the petitioner can be blamed for non-possessing of required service in the post of Assistant on the clerical side.
7.The power of posting in a particular department is vested with the authority concerned. The petitioner has no control over the said aspect. It is not the case of the respondents that the petitioner was offered the posting as Assistant and he declined to work in the same. In the absence of any such averments, the decision relied on by the learned counsel for the petitioner is squarely applicable to the facts of this case.
8.In (2011) 8 MLJ 317 (S.Krishnakumar v. State of Tamil Nadu) I had an occasion to follow the earlier orders and held that for not attending foundation training in Bhavani Sagar Training Institute, which is not the fault of the employee, he cannot be denied placing of his name in the panel for promotion. In the said decision the employee retired and notional promotion was ordered to be granted. The operative portion of the said decision reads as follows:
6. .......... This Court in W.P.No.13517 of 2009, by order dated 9.4.2010 considered the very same issue and in paragraph 19, it is held as follows:
19. Going through the issue, this Court pointed out that on no fault of the petitioners but on account of administrative reasons, the petitioners could not complete their service qualification to serve in the category of Rural Welfare Officer Grade I. It was pointed out that even though the petitioners had been in service as Junior Assistant with effect from 1991 and in the post of Rural Welfare Officer Grade I, the petitioners were not considered for further promotion on account of the non-completion of the service requirements. This Court held that when the petitioners had successfully completed the departmental examinations, the petitioner cannot be denied inclusion in the panel on the ground that they did not possess the service qualification an area which was purely in the hands of the respondents. Referring to the order of this Court dated 9.10.2006 in W.P.No.18501 of 2006 C.Periasamy and Another v. District Collector, Dharmapuri, holding that service qualification cannot be equated to a pass in the departmental test, this Court held: While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post is not within the hands of the individual. In the circumstances, this Court held that the respondents should have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications. This Court pointed out that but for the belated regularisation in 1996, the petitioner would have undergone the foundation training in Bhavani Sagar Training Institute, the petitioners were not at fault, they should not have been omitted to be included in the panel.
7. It is also pointed out in the said judgment in paragraph 21 that deputing the petitioner therein for one year training at Bhavani Sagar Institute cannot be attributed to the petitioner and he had not qualified himself though inclusion in the promotion panel for seniority cannot be allowed as it would prejudice the petitioner as he was prevented by the department to undergo the training. Ultimately, in paragraphs 28 to 31 it is held thus:
"28. It is no doubt true that in the case of a person who sleeps over his right consciously, the question of showing any indulgence to disturb a well settled seniority will not arise. As already pointed out, on the appeal preferred by respondents-3 to 5 dismissed, the seniority of the petitioner remained undisturbed at least upto 2001. There was no occasion for the petitioner to entertain any doubt as to the seniority panel to voice his grievance. He came to know of this fact only when the petitioner's name was not included in the panel prepared for the year 2004 onwards. In the background of this fact, when as per the law declared by this Court, the petitioner's name should have been considered in the seniority list, he having successfully completed the examination well ahead of respondents 3 to 5, the delay in challenging the seniority list, by itself, cannot be held against the petitioner, for the simple reason that the delay on the part of the District Collector had caused serious prejudice to the petitioner by his not having deputed the petitioner to undergo the one year stint in the post of Rural Welfare Officer Grade II and for the foundation training in the Bhavani Sagar Training Institute as required under the Service Rules.
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9.In the common order dated 4.9.2007 made in W.P.Nos.47872, 47885 of 2006 and 7791 of 2007, in paragraph 8 the said issue is answered as follows:
8. Under these circumstances, the petitioners cannot be denied the benefit of inclusion in the panel, on the ground that they did not possess the service qualification. After all, the service qualification cannot be equated to the qualification of a pass in the departmental test. While the pass in a departmental test may be in the hands of the individual, the posting of the individual to a particular post, is not within the hands of the individual. Therefore, the respondents ought to have formulated and implemented a policy providing equal opportunity to all persons to acquire the service qualifications. Since the respondents have failed to do so, the petitioners were not at fault and on that ground, they should not have been omitted to be included in the panel. The said order is followed in the decision reported in (2012) 1 MLJ 634 (S.Sasisivanandam v. District Collector, Thoothukudi District), wherein it is held that when the matter of posting of an employee to a particular post lies in the domain of the concerned authority, the employee cannot be blamed for non-acquiring of required service qualification and denial of promotion on that ground is not justified. Thus, the reason stated in the impugned order for not considering petitioner's name for promotion as Deputy Tahsildar is contrary to the well settled principle of law.
10.The petitioner has made out a case for considering his name for inclusion in the panel for promotion to the post of Deputy Tahsildar drawn by the second respondent and the impugned proceedings passed by the second respondent dated 6.1.2012 is set aside. The second respondent is directed to consider the name of the petitioner for inclusion in the panel for promotion to the post of Deputy Tahsildar.
11.The writ petition is accordingly disposed of. No costs.
Index : Yes/no
Internet : Yes/No 17-4-2012
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To
1. The Principal Secretary/
Commissioner of Revenue Administration,
Chepauk, Chennai - 600 005.
2. The District Collector,
Krishnagiri District.
N. PAUL VASANTHAKUMAR, J.
rk
W.P.No.9354 of 2012
17-04-2012